State v. Perry
| Decision Date | 24 September 1997 |
| Docket Number | No. 21346,21346 |
| Citation | 954 S.W.2d 554 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Jeremaine T. PERRY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
James R. Wyrsch, Jacqueline A. Cook, Charles M. Rogers, Wyrsch, Hobbs, Mirakian & Lee, P.C., Kansas City, for Defendant-Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Joanne E. Joiner, Asst. Atty. Gen., Jefferson City, for Plaintiff-Respondent.
Jeremaine Perry (Defendant) was convicted by a jury of second degree murder pursuant to section 565.021 1 for killing his grandfather, Samuel Arthur Duke, Sr. Defendant was sentenced to a term of life imprisonment in the Missouri Department of Corrections. Defendant appeals.
This Court considers the facts and all reasonable inferences therefrom in the light most favorable to the verdict and rejects all contrary evidence and inferences. State v. Phillips, 940 S.W.2d 512, 515 (Mo. banc 1997); State v. Wright, 941 S.W.2d 877, 879 (Mo.App.1997).
On January 2, 1993, Defendant was home with his grandfather, Samuel Arthur Duke, Sr., in Springfield, Greene County, Missouri. Defendant was fifteen years-old. Defendant's parents were scheduled to return to Springfield from St. Louis later that evening. 2
At approximately 1:30 p.m., Defendant told his grandfather that they needed some cereal. Before departing to the store to purchase some cereal, Defendant's grandfather noticed that the car was dirty, so he questioned Defendant as to whether Defendant had been driving the car. Defendant professed to his grandfather that indeed he had driven the car to a party the night before, without permission. Defendant was informed by his grandfather that Defendant's parents would have to be told about Defendant's unauthorized use of the car. Following that conversation, Defendant's grandfather drove to the store, purchased some cereal and returned home.
After Defendant consumed some cereal and watched a football game on television with his grandfather, Defendant went to his bedroom where he developed a "feeling" that he wanted to "kill [his] grandfather." While Defendant was alone in his bedroom watching another football game on television, the "feeling" subsided. After a trip to the bathroom, however, the "feeling" that Defendant wanted "to kill [his] grandfather" returned.
Defendant then decided to go to his grandfather's bedroom, where he fervently searched for a gun. Defendant remembered seeing a rifle in his grandfather's bedroom from when he was there the previous summer. Defendant located a .22 caliber rifle and a shotgun in the closet. Defendant took the weapons back to his bedroom where he loaded the .22 caliber rifle with at least two bullets.
Defendant then placed the loaded rifle down on the floor in the hallway, walked slowly up the hallway so as not to be detected, and then slowly looked around the corner and found his grandfather's back facing him while he was in the kitchen. Defendant's grandfather was preparing a jelly sandwich.
Defendant then retrieved the rifle, walked up the hallway and aimed the rifle at the back of his grandfather's head and squeezed the trigger. A .22 caliber bullet entered the back of Defendant's grandfather's head. Defendant observed "blood coming out the back of his [grandfather's] head" as his grandfather fell backwards to the floor. Defendant then aimed the rifle down toward his grandfather's forehead and fired the rifle a second time. Defendant believed that "two [bullets] in the head would kill him."
After shooting his grandfather and returning the weapons to his grandfather's bedroom closet, Defendant went to a friend's house where he stayed for about one hour before returning home. Immediately after Defendant returned home, he hurriedly exited the house and ran across the street to a neighbor's house. Defendant related to his neighbor that he had just returned home and found his grandfather lying on the floor, dead. The neighbor testified that he asked Defendant if perhaps Defendant's grandfather was only hurt, but Defendant exclaimed "[n]o, he's dead ... [h]e's laying in a pool of blood with a gunshot, with a bullet hole in his head." The neighbor telephoned 911.
After the ambulance and police arrived, Defendant explained to the Springfield police that upon returning home from his friend's house he discovered his grandfather lying on the floor, dead. Defendant initially related to the police that he had no knowledge of the events leading to his grandfather's demise. Defendant remained with his parents after they returned from St. Louis later that day.
With Defendant's mother and step-father present, Defendant made voluntary recorded statements to Springfield Police Detective Doug Thomas on the day of murder, January 2, 1993, and the day following, January 3, 1993. Juvenile Officer Perry Epperly was also present during each interview. During these two recorded statements, Defendant maintained that he had no knowledge about what happened to his grandfather.
On the afternoon of January 3, 1993, the victim's son, Samuel Duke, Jr., arrived in Springfield and engaged Defendant in a conversation regarding what happened. Mr. Duke testified during Defendant's trial that Defendant told him that after Defendant returned home from his friend's house, he found a white man, wearing a tie and carrying a brief case, who knocked Defendant down and stated "[m]mm, mmm, two niggers in one day." Mr. Duke, an Oklahoma City Police Detective, did not believe Defendant. Later that evening Defendant admitted to Mr. Duke that he had shot his grandfather but that it was an accident.
On the next day, January 4, 1993, with his mother and step-father present, Defendant voluntarily made another recorded statement to Detective Thomas wherein he admitted that he had shot his grandfather but explained that it was an accident. Defendant explained to Detective Thomas that his grandfather had brought a rifle into the living room and handed it Defendant. Defendant stated that during the course of his handling the rifle, it accidentally fired and that the bullet struck his grandfather's head. Defendant then told Detective Thomas that the gun fired a second time but that he was not sure where the bullet traveled.
On January 7, 1993, Defendant voluntarily appeared at the police station again to make a recorded statement with Detective Thomas. This time, Defendant's attorney, Mr. Dee Wampler, was present during Defendant's interview. Defendant changed his story again and confessed to Detective Thomas that on the day of the murder he developed feelings of wanting to kill his grandfather after his grandfather questioned him about his use of the car. Defendant related to Detective Thomas that he located a .22 caliber rifle in his grandfather's closet, loaded at least two bullets in its chamber and then shot his grandfather in the head.
An autopsy was performed on Samuel Arthur Duke, Sr., by Dr. James Spindler on January 4, 1993. The autopsy confirmed that the victim was shot twice in the head with a small caliber rifle. Following Defendant's fourth interview with Detective Thomas, Defendant was charged with first degree murder. Defendant was a juvenile at the time of the murder but was certified to be tried as an adult pursuant to section 211.071. Defendant was ultimately convicted of murder in the second degree and was sentenced to life imprisonment. Defendant assigns twelve points of trial court error, and in addition to more specific allegations of trial court error, Defendant generally maintains that his rights under the Fifth, Sixth, Fourteenth Amendments to the United States Constitution and Article I of the Missouri Constitution were violated.
We review a trial court's decision to deny a motion for new trial on the basis of an abuse of discretion; that is, when the trial court's ruling clearly offends the logic of the circumstances or when it becomes arbitrary and unreasonable. State v. McNeal, 880 S.W.2d 325, 330 (Mo.App.1994). On review of a motion to direct a verdict of acquittal, we look only to whether there was sufficient evidence from which reasonable persons could have found Defendant guilty beyond a reasonable doubt. Id.; see State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989).
In Defendant's first point, he maintains that the trial court erred in denying his motion for new trial, arrest of judgment and judgment of acquittal. He asserts that his constitutional rights to due process, a fair trial and right to counsel were violated when special prosecutors in the case obtained privileged attorney-client communications from Defendant's former attorney, Mr. Dee Wampler. 3 Defendant maintains that the special prosecutors in this case should have been disqualified [and new special prosecutors appointed]. Defendant asserts in his brief that "[o]nce the Special Prosecutor received confidential information, a conflict of interest developed which mandated disqualification."
We note that a motion to disqualify the special prosecutors in this case is conspicuously absent from the record. Moreover, this Court was not directed to any portion of the record where Defendant specifically objected to the special prosecutors' presence during the trial. 4 See State v. Bransford, 920 S.W.2d 937, 944 (Mo.App.1996); State v. Miller, 870 S.W.2d 242, 246 (Mo.App.1994).
Defendant argues, however, that the trial court was aware that Defendant believed the special prosecutors should have been disqualified but that the trial court "never did rule on the Defendant's objection ... based on the ... conflict of interest."
"In order to preserve an allegation of error on appeal there must be a proper objection and there must be an adverse ruling." State v. Rodney, 760 S.W.2d 500, 504-05 (Mo.App.1988); see also State v. Blakeburn, 859 S.W.2d 170, 177 (Mo.App.1993). Def...
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